David B. Thronson
Happy families are all alike; every unhappy family is unhappy in its own way.
—Leo Tolstoy, Anna Karenina
Immigration law privileges certain families, those “happy families” whose individual and group characteristics align with the narrow parameters that immigration law makes vital to successfully navigate the maze of immigration law. The central role of family ties in assisting such families move smoothly toward lawful immigration status creates a ubiquitous yet inaccurate impression that the promotion of family unity is a key value underlying immigration law. By focusing only on the happy families that benefit from immigration law, it is easy to ignore the disdain for family unity that is evident in the failure of immigration law, by acts and omissions, to keep families together. Family can play a significant role in immigration law, but in a much more narrow and less benign way than is generally contemplated.
For families that do not meet the exacting templates of immigration law, the story is not of family unity but rather of separation and hardship. By failing to value basic notions of family independence and decision-making, immigration law fails these “unhappy families,” those that do not conform to the model family recognized and rewarded by immigration law. These families find themselves at odds with the harsh mandates of immigration law and demonstrate that the law is not always, or even usually, a family-friendly endeavor.
As immigration law intrudes upon and shapes family decisions about who will live where and with whom, it stands out for the starkness of its demands and the frequency with which its dictates conflict with the values and narratives that are foundational to ideas of family in broader society and other areas of law. A closer inspection of the role of family in immigration law reveals that for families outside the exacting mold that immigration values, family is of little use in slowing robust deportation efforts and, even more broadly, in providing avenues that would allow families to achieve lawful immigration status and protect themselves from fear of deportation.
The failings of immigration law for families that do not conform to particular characteristics result in family separation, hardship and suffering for families, and predictably prevalent patterns of poverty that impact many immigrant families. These failings also lead to confusing interactions with other societal institutions and legal systems, such as family courts, that attempt to effectuate family unity and work in the best interests of children. As an outlier in its treatment of children and families, immigration law is out of step with broader values and efforts to preserve families.
In general society, the importance of family is rarely questioned. Yet in the confidence of this presumed importance it is all too common to overlook the ways in which public policy choices and the law fail to support and protect families. Nowhere is the gap wider between rhetoric touting the importance of family and the reality of the law’s impact than in the area of immigration. A review of the role of family in immigration law reveals the extent to which immigration law strays from the values and views of family that we espouse in other public policy arenas and in other legal realms, such as family law.
Outside immigration, family and notions of family unity play a central and privileged role in the U.S. legal system. Despite the absence of the word “family” anywhere in the U.S. Constitution,1 the Supreme Court consistently has acknowledged that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural” (Moore v. City of East Cleveland 1977). In family law, an important means to protect family integrity has been emphasis on the parent-child relationship, as “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the Court”2 (Troxel v. Granville 2000). While elevating the parent-child relationship, however, the Court also has recognized that families may decide they are best served by living in some arrangement other than the traditional nuclear family and that the Constitution prohibits the government “from standardizing its children and its adults by forcing all to live in certain narrowly defined family patterns” (Moore v. City of East Cleveland 1977). Although uneven in their success, legal frameworks in the United States generally strive to effectuate the vitality and independence of the family that the centrality of family demands.
Immigration law stands in stark contrast to soaring rhetoric about the family’s fundamental importance and independent diversity. As a result, there is tremendous potential for deep conflict as immigration law and family law intersect. The vindication of immigration law often compromises family integrity, and family integrity often can be accomplished only in violation of immigration laws. Through the operation of immigration law, parent-child relationships routinely are strained and broken. And even when immigration law provides benefits or relief on the basis of family for some, rigid and standardized notions of family limit options for many families that do not exhibit a narrow range of characteristics.
Through stilted statutory frameworks, narrow notions of family, and harsh provisions that anticipate and accept infliction of family suffering, immigration law renders compelling narratives and facts about families largely irrelevant to immigration analysis. The veneer of family friendliness that often is attributed to immigration law fades under closer observation.
U.S immigration law at first blush appears oriented toward advancing family unity through an elaborate system of family-sponsored immigration and provisions for derivative immigration of the family members of certain immigrants who qualify for immigration benefits. See Immigration and Nationality Act (INA) § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i) (Supp. 2011), (excluding “immediate relatives” of U.S. citizens from direct numerical limitations on immigrant visas); § 1151(c) (2006) (setting levels of family-sponsored immigrants); 1153(a) (2006) (creating preference categories for family-sponsored immigrants); § 1153(d) (2006) (permitting some family members to accompany or follow to join family members with immigrant visas). Indeed, reports of U.S immigration law often attribute to it the goal of keeping families intact (see also Sanger 1987). The conflict between this perception and the reality of immigration law is most obviously apparent in situations where a family member faces deportation from the United States, but deeper tensions in the basic family immigration framework occur less openly but quite effectively to keep families from living together in conformity with immigration law.
First, when a person faces removal from the United States it is as an individual, not as a family unit (But see 8 U.S.C. § 1227(a)(4)(B) (2006) and 8 U.S.C. § 1182(a)(3)(B) (2006), making spouses and children deportable based on their relationship to a noncitizen involved in terrorist activity; see also Nessel 2005). For example, removal proceedings may result in an order of deportation against a parent that does absolutely nothing to affect directly the immigration status of a child or other family members. This hardly means, however, that family members are not affected.
Family can play a limited role in mounting a defense to removal from the United States, but the legal framework that permits this is narrow and eliminates consideration of most facts that obviously come to mind when thinking about the reality of a family facing the prospect of losing the presence of a family member. The compelling narratives of loss and separation that accompany the enforcement of immigration law are rendered largely irrelevant.
For example, persons without lawful immigration status who are placed in removal proceedings may apply for cancellation of the removal if they meet a number of criteria, including having been physically present in the United States for ten years and being of good moral character (INA § 240A, 8 U.S.C. § 1229b (2006 and Supp. 2011)).3 To qualify, they also must prove that removal would cause “exceptional and extremely unusual hardship” to a legal permanent resident or U.S. citizen spouse, parent, or child (INA § 240A, 8 U.S.C. § 1229b (2006 and Supp. 2011)). The standard here is high and has proven difficult to satisfy. Cancellation applicants not only must have qualifying family members but also must demonstrate hardship “substantially different from, or beyond that which would normally be expected from the deportation of an alien with close family members here” (In re Monreal-Aguinaga 2001).
In other words, the expected or normal hardship that the deportation of a family member entails is made irrelevant as an expected result of the enforcement of immigration laws. Under this reasoning, for example, separation between parents and children left behind in the United States is unlikely to rise to “exceptional and extremely unusual hardship” because such separation is not unusual and “[d]eportation rarely occurs without personal distress and emotional hurt” (Sullivan v. INS 1985). Family separation is “simply one of the common results of deportation or exclusion [that] are insufficient to prove extreme hardship” (Jimenez v. INS 1997). Anticipating suffering, immigration law renders it irrelevant and insufficient to warrant relief from deportation.
Arguments that the requisite hardship will result if families choose not to separate by having members accompany the deported person abroad are an equally difficult path to immigration relief. For example, diminished access to education, healthcare, and economic opportunities for U.S. citizen children who are raised in other countries similarly are viewed simply as the anticipated results of deportation and thus do not meet the “exceptional and extremely unusual hardship” standard (Jimenez v. INS 1997).4 So high is the standard to establish extreme hardship that one circuit court of appeals described its role as reviewing the record for hardship that is “uniquely extreme, at or closely approaching the outer limits of the most severe hardship the alien could suffer and so severe that any reasonable person would necessarily conclude that the hardship is extreme” (Hernandez-Cordero v. INS 1987).
The meager and dwindling set of narratives that can lead to relief in the cancellation of removal context is contrary to mainstream values and approaches in other areas of law, such as family law, where the importance of considering children’s interests in legal decisions regarding family is well established: “The custody law in every state in the United States . . . embraces the ‘best interests’ standard” (Blair and Weiner 2005). Over the last several decades, however, immigration law has moved away from considering such narratives. Immigration law demands no more than mere avoidance of exceptional and extremely unusual hardship to certain family members, while anticipating that significant hardship is inevitable. Immigration law dismisses narratives of family suffering that accompany deportation for not matching the extremes it requires. The unique and deeply felt experiences of families facing the loss of loved ones are gathered together as expected, and disregarded. Immigration law ignores the uniqueness of each family by requiring a particular and demanding form.
Second, even where exceptional and extreme hardship exists, immigration law limits relief by restricting its application to a short list of relationships based on the traditional nuclear family. By failing to acknowledge the importance of nontraditional arrangements for caretaking and support of children, immigration law again limits the relevance of compelling family narratives that result from the application of immigration law. Immigration law’s restrictive use of a narrow construct of family effectively “negates other prevalent family configurations which make up functional families, such as single-parent households, grandparent-grandchild households, same-sex couples, polygamous marriages, and extended family configurations (King 2010, p. 515).”5 This approach fails to consider that millions of children in the United States “grow up in families in which care is not provided exclusively by two heterosexual opposite-sex parents. Instead, caregivers increasingly include gay and lesbian families, single parent or ‘cohabiting’ parent families, families with grandparents (either as primary caregivers or in addition to primary caregivers), and various other formations” (Kavanagh 2004, p. 91).
The failure to recognize nontraditional families in immigration law creates disparate impacts across racial and ethnic lines. For example, ignoring the reality of grandparents who care for their grandchildren in immigration law has a particular impact on Latino populations because “Hispanic grandparents are the largest population of noncitizen caregiver grandparents” (Zug 2009, p. 242). By insisting on an outdated and restrictive construction of family, immigration law advances “a false construct of human society, cultural constructions, and racial and ethnic prejudices” (King 2010, p. 515).
Beyond the context of immigration law, families routinely function in ways that diverge from the traditional notion of the nuclear family. Family decisions about who lives with whom often take into account who cares for or provides for whom. Indeed, these decisions, which create networks of interdependency and support, are hallmarks of the notion of family. By removing many of the basic realities of families from consideration when family members face deportation, immigration law proceeds on a faulty premise and fails to respond to the realities it creates.
Third, beyond the substance of immigration law, the manner in which immigration law is enforced has tremendous impact on families. Shifts in immigration enforcement strategies to emphasize interior enforcement significantly affect immigrant families. First, the past decade saw raids targeted at workplaces, often large-scale, dramatic events that impacted hundreds of immigrants and their families and disrupted entire communities (Capps et al. 2007). The more recent shift to raids targeted at homes results in events that are of smaller scale and less likely to generate widespread media coverage, but this makes them no less dramatic in nature for the individual families involved.6 Immigration enforcement activities are traumatic for those arrested and for witnesses alike, especially children who witness the arrests of parents or other relatives (Hendricks 2007).
The increase in interior enforcement contributes to a climate of fear among immigrants who often are settled into communities and previously might not have felt targeted by immigration law enforcement. The larger workplace raids in particular result in “crisis scenarios in terms of the care arrangements for the hundreds of children who temporarily los[e] their parents . . . [and lead] ‘to a general sense of chaos and fear” (Capps et al. 2007, p. 34). Reports of one major raid indicate that at times the “situation deteriorated further toward outright panic” and families hid “in their basements or closets for days” (ibid.). Living with family members who lack authorized immigration status means living with the constant fear that a family member will face deportation. Kevin Johnson writes: “The fear of deportation haunts many immigrants. They know that they can be torn away from established lives, family, friends, and community in an instant for lacking the proper immigration papers or for even something as minor as failing to file a change of address form with the U.S. government within ten days of moving” (Johnson 2007, p. 46).
Immigration raids have a particular impact on children in immigrant families because “many children face [] traumatic circumstances and insecure care . . . in the period after the raids” (Capps et al. 2007, p. 37). The Department of Homeland Security’s Office of Inspector General notes that it does not require the collection of data on the status of children of persons who are deported (USDHS 2009). Still, recent data from US Immigration and Customs Enforcement suggest that about 90,000 parents of US-born citizen children have been deported each year for the past several years. (Wessler 2012).
According to “[c]hild psychology experts . . . children suffer most from the disruption of armed agents coming into their homes and taking away their parents—and sometimes themselves. Children can experience stress, depression and anxiety disorders” (Hendricks 2007). “The most destabilizing impact on the children of arrestees following worksite enforcement actions came from the separation and fragmentation of families” (Capps et al. 2007, p. 42). For children, “emotional trauma . . . followed separation from one or both parents” (ibid., p. 50). Younger children cannot understand the concept of immigration law and any “sudden separation [is] considered personal abandonment” (ibid., p. 51). Moreover, “children who witness their parents being taken into custody lose trust in their parents’ ability to keep them safe and begin to see danger everywhere” (Hendricks 2007).7
Aside from the initial trauma, a parent’s detention or deportation removes that parent’s earnings from the household, creating “a more unstable home environment and remov[ing] one of the main strengths in immigrant families—the presence of two parents” (Capps et al. 2007, p. 41). Furthermore, when the parent who is arrested is a working parent, he or she often is the person in the family who is most integrated into U.S. society, so that the connection with broader society is diminished (Capps et al. 2007).
In the wake of mass immigration enforcement raids, children have exhibited increased absenteeism in schools (WCCO 2007). Often, enforcement actions that are widely known in the community cause “some degree of polarization between Latino immigrants and other community residents” (Capps et al. 2007, p. 51). Children experience social isolation when they are “harassed by other children or branded as criminals because their parents were arrested” (ibid., p. 52). Following one large raid, at school “[m]any children exhibited outward signs of stress . . . [and] lost their appetites, ate less, and lost weight” (ibid.; see Brabeck et al., this volume).
The enforcement of immigration law creates searing family narratives of separation, hardship, and trauma, yet immigration law ignores these compelling stories and renders them legally irrelevant. Removal proceedings provide no opportunity or framework to hear the voices of those most directly and deeply affected by the enforcement of immigration law. By narrowing what is relevant, deportation is accomplished without having to confront the reality evidenced by the voices and narratives of immigrant families. Things that matter deeply—family separation, hardship and trauma—are swept aside.
Deportation and post-deportation consequences do not happen in a vacuum. The frameworks for lawful immigration create the pool of persons and families that will be subject to deportation through the allocation of lawful immigration status to some and the withholding of this from others. As in the context of deportation, the restricted role of family in determining who will obtain lawful status, and thus exemption from some of the harshest provisions of immigration law, is often misapprehended.
On a practical level, many choices about who is permitted to immigrate to the United States lawfully are personal. It is commonly understood that immigration law addresses the ability of persons to immigrate or remain in the United States, but it is often overlooked that immigration law in large part is about determining when U.S. citizens, legal permanent residents, may create immigration rights in others. By specifying who is empowered to generate immigration rights in certain family members, immigration law privileges some families and relationships, while devaluing others. A narrow set of personal choices are empowered while others are rejected.
The Immigration and Nationality Act’s family-sponsored immigration framework permits legal permanent residents and citizens to petition for immigrant visas only for certain family members (see 8 U.S.C. § 1151(b)(2)(A)(i) (2006); 8 U.S.C. § 1153(a) (2006)). Under this scheme, a “petitioner,” a person having legal immigration status, files for a “beneficiary,” a person wishing to immigrate and who the law presumes is waiting outside the country. If the principal beneficiary has a spouse or children, in some instances the spouse or children may acquire immigration status as derivatives (see 8 U.S.C. § 1153(d) (2006)). Through this framework, petitioners with lawful immigration status regulate the flow of immigration status from themselves to qualifying relatives and their dependents.
Immigration law assigns various levels of priority to such family-sponsored immigration petitions based upon the immigration status of the petitioner and the relationship between the beneficiary and the petitioner (see 8 U.S.C. § 1153(a)). Citizens of the United States can petition for their spouses, children, siblings, and parents (see 8 U.S.C. § 1153(a); 8 U.S.C. § 1151(b)(2)(A)(i)). Lawful permanent residents may petition only for spouses and unmarried children (see 8 U.S.C. § 1153(a)).
In this framework, petitions filed by citizens receive priority over those filed by lawful permanent residents. Similarly, petitions based on what are considered close familial relationships are privileged over those based on less favored family relationships (Demleitner 2003; Kelly 2001; Motomura 1995; Romero 2005; Zug 2009). Because petitions of citizens for their spouses and unmarried minor children are not subject to numerical limits, they face no backlogs and are immediately available (see 8 U.S.C. § 1151(b) (2006 and Supp. 2011).8 Relationships that are less favored, such as those between a legal permanent resident parent and a child, are subject to numerical limitations and are subject to extensive backlogs.9 Immigration petitions receiving the lowest priority, based on the relationship between adult citizens and their siblings, can be backlogged for periods extending decades (USDS 2011). When immigration laws that recognize “certain family ties but not others, and then rank those ties in order of importance . . . indicate which relationships matter the most in the eyes of the state. In short, laws relating to the family inherently embody normative ideals” (Huntington 2009, p. 413).
In addition to privileging some families over others, this framework has a particular impact on children. First, it adopts a restrictive definition of the word “child,” guaranteeing that not all children are recognized as “children” for immigration purposes. Children can be recognized as a “child” only if they meet the criteria of a “particularly exhaustive” statutory definition (INS v. Hector 1986; see also Immigration and Nationality Act § 101(b)(1), 8 U.S.C. § 1101(b)(1) (2006 and Supp. 2011)). With clear intent not to include all children, a “child” is defined as one who meets other qualifying conditions, such as being born in wedlock or having a father who has taken specified steps to “legitimate” his child (see 8 U.S.C. § 1101(b)(1)). By basing the qualifications of who becomes a “child” on the actions and decisions of parents, this definition empowers parents as “rights holders who may take action to recognize a ‘child’ for immigration purposes. Children, in contrast, are by definition passive objects subject to parental control” (Thronson 2002, p. 992).
As in the deportation context, functional relationships outside formal statutory confines are ignored.10 For example, even when a woman’s “relationship with her nieces closely resembles a parent-child relationship, [the courts] are constrained to hold that Congress, through the plain language of the statute, precluded this functional approach to defining the word ‘child’” (INS v. Hector 1986, pp. 90–91).11 Although courts have noted that with regard to “the technical definition of ‘child’ contained within this statute . . . it could be argued that the line should have been drawn at a different point . . . these are policy questions entrusted exclusively to the political branches of our Government” (INS v. Hector 1986, p. 89, citing Fiallo v. Bell 1977). Immigration law’s formalistic approach fails to account for choices outside the child’s control about who can and will provide care for her, and contrasts with the treatment of children in other areas of law. “To be sure, the [Immigration and Nationality Act’s] definition of ‘child’ may be far out of step with the times, and may have particularly deleterious effects on aliens whose culture’s definition of ‘family’ is legitimately broader than the traditional definition of those related by blood or adoption” (Dorado v. Gonzalez 2006, p. 902).12
Even where adults have acted in such a way that children may be recognized as children under immigration law, the result is not that children are empowered under immigration law, but rather that immigration law allows parents to decide if their children may benefit from the exercise of the parents’ rights (see 8 U.S.C. § 1151(b)(2)(A)(i) (2006) (allowing petitions for children by U.S. citizen parents); 8 U.S.C. § 1153(a)(2) (2006) (allowing petitions for children by permanent residence parents.)) An “unfortunately common problem with the family-based immigration regime . . . [is that] [d]erivative beneficiaries are just that—derivative—meaning that they have few rights of their own and instead depend on the competence and cooperation of the principal immigrant” (Fornalik v. Perryman 2000, pp. 527–528).13 Not all parents are cooperative, and others are not able to competently avoid actions or decisions that preclude their attainment of lawful immigration status.
By effectively limiting family-sponsored immigration access to lawful permanent resident status for children to their status as dependents, immigration law subordinates children to their parents’ rights and abilities. Family-sponsored immigration provides no benefits to children because they are children. The “right” parent who advances successfully through the maze of immigration law is rewarded, and the child may benefit. But other than as a dependent of the “right” parent, the major paths to acquiring lawful immigration provide no special recognition or rights to children as individuals or based on their status as children.14 Immigration law values families in which a family member has status, but not all such families. Those in which an adult holds status are privileged, and those in which children hold status are excluded.
By focusing on the adults in children’s lives rather than children themselves, U.S. immigration law fails to recognize children as individuals. Arbitrarily limiting the pool of adults in children’s lives who matter for purposes of immigration law further devalues the perspective of the child in immigration law. This rejection of the perspectives and realities of children reinforces the conception of children as dependents, not as individuals. This has negative consequences for the child lacking the “right” parent, and the pervasive influence of this limiting conception of children further impedes children who immigrate on their own or outside legal pathways.
Immigration law’s asymmetric treatment of adults and children is in evidence in other aspects of immigration law where family relationships are granted significance by immigration law. For example, in situations where a person is eligible for an immigration visa, grounds for inadmissibility still may preclude a beneficiary from being able to immigrate to the United States (see 8 U.S.C. § 1182 (2006 and Supp. 2011)). For example, immigration law includes provisions that bar for three years the reentry of people who leave the United States after remaining here unlawfully for more than 180 days (see 8 U.S.C. § 1182(a)(9)(B)(i)(I) (2006)). A person who remains in the United States unlawfully for a year or more, then leaves, is barred from reentry for ten years (see 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006)). As a result, people who have been in the country unlawfully for more than a year cannot initiate the consular process to obtain lawful permanent resident status for which they are eligible without facing a ten-year wait outside the country. This is critical for persons who entered the country without inspection and on that basis are barred from processing their immigration petition in the United States through a process known as adjustment of status (see 8 U.S.C. § 1255(a)–(c) (2006)). The disconnect created by these statutory provisions between eligibility for lawful status and the realistic ability to obtain that status has particular impact on families with members from Mexico and Central America, as persons from these regions are over-represented among those who entered without inspection.15
Acknowledging the hardship that a bar to admission for three or ten years can impose, immigration law does provide for a waiver of these grounds of inadmissibility by establishing that inadmissibility would result in hardship to family members (see 8 U.S.C. § 1182(a)(9)(B)(v) (2006)). Under the terms of the waiver provision, however, only hardships faced by adult family members, i.e., spouses and parents, are relevant (see 8 U.S.C. § 1182(a)(9)(B)(v) (2006)). Hardships that will affect children are excluded from relevance under the statute, so children’s interests are excluded from the waiver process (see 8 U.S.C. § 1182(a)(9)(B)(v) (2006)). Here again, immigration law silences the voices of those most directly impacted by its application and renders everyday narratives of hardship irrelevant to the operation of immigration law.
By writing the reality of immigrant families and children out of immigration law frameworks, immigration law restricts families from successfully navigating the immigration system to regularize immigration status for all family members. This, in turn, creates the pool of persons and families that will be impacted most directly and deeply by deportation. The reality is that post-deportation consequences for families must account for the skewed immigration law framework that effectively protects some families by providing avenues for obtaining lawful status while simultaneously blocking such results for others. The balance struck by immigration law must be questioned when, for example, the relatively minor fact of an entry without inspection decades earlier can overcome a lifetime of hard work and nurture on behalf of a family that will suffer immensely from the application of immigration law. Immigration law punishes decisions to pursue better opportunities for families, yet these are precisely the type of aspirations and decisions that are expected and rewarded in other contexts.
Restrictions on the relevance of family in immigration matters contribute greatly to the resulting demographics of the nation’s immigrant population. In particular, it results in a large and rising number of mixed-status families, that is, families in which all family members do not share the same immigration or citizenship status (Fix and Zimmermann 1999, p. 2). A mixed-family status can include families in which all family members have some form of lawful immigration status, but many are comprised of family members who are authorized to remain in the United States together with others who are not.
Children in immigrant families now account for nearly one-fourth of all children in the United States (Hernandez and Cervantes 2011, p. 6). The majority of children in immigrant families, 59 percent, have at least one parent who is a U.S. citizen (Hernandez 2009). Still, 5.5 million children have at least one parent who lacks lawful immigration status (Passel and Cohn 2011). In 2008, “of the 5.5 million children of unauthorized immigrants, 4 million, or 73%, were born in the United States” (ibid.).
In addition to differences in status between parents and children, there are also divides within families among siblings. Adolescent children in families with unauthorized parents are more likely to be unauthorized themselves than their younger siblings (Capps et al. 2007). Because more “younger children were born here, there are many mixed-status families in which the younger children are citizens but the older children—like their parents—are noncitizens” (Urban Institute 2006, p. 2; see Lykes et al., this volume).
Including adults along with children, almost 9 million people live in families with at least one unauthorized immigrant (Passel and Cohn 2009). Included in the population of unauthorized immigrants are 3.8 million parents of U.S. citizen children (Passel and Cohn 2009). Parents of U.S. citizen children, therefore, make up 37 percent of the adult population of unauthorized immigrants (ibid.). By any measure, the population of mixed-status families is significant. The realities that they face are deeply affected by issues of immigration status.
The immigration status of family members is not without consequence, especially for citizen children of unauthorized immigrants who often fail to benefit from the full promise of their citizenship. These children often find themselves effectively stateless because they face barriers not encountered by children in non-immigrant families as many “policies that advantage or disadvantage noncitizens are likely to have broad spillover effects on the citizen children who live in the great majority of immigrant families” (Fix and Zimmermann 1999, p. 2).
Unsurprisingly, immigration status has an effect on the economic status of children and families, and nearly half of all immigrant families live below 200 percent of the poverty line (Hernandez 2009). In fact, “children of immigrants [are] 1.5 times more likely than children in native-born families to live in a family with an income below the official federal poverty threshold, at 27.8 percent versus 18.6 percent” (Hernandez and Cervantes 2011, p. 9). When parents are unauthorized the figure is slightly higher, and a third of the children of unauthorized migrants live in poverty (Passel and Cohn 2009). Unauthorized migrants and their U.S. citizen children together account for 11 percent of people below poverty level, twice their percentage of the total population (Passel and Cohn 2009). Nearly half of all unauthorized migrant children and a quarter of U.S. citizen children of unauthorized migrants are uninsured (ibid.). Overall, “children of immigrants are substantially more likely than children with U.S.-born parents to be poor, have food-related problems, live in crowded housing, lack health insurance, and be in fair or poor health” (Capps et al. 2005, p. 5).
Even though citizen children are often eligible for benefits without regard to their parents’ status, citizen children of immigrant parents access public benefits at a lower rate than children born to citizen parents (Fix and Passel 2002). This fact alone undermines myths that immigrants are drawn to the United States by the availability of public assistance (Fix and Passel 2002). Since the passage of welfare reform legislation in 1996, many social benefits laws differentiate between citizens and noncitizens, including those noncitizens with legal immigration status, reducing the overall availability of benefits to immigrant families.16 When citizenship status limits eligibility and only some family members are eligible for benefits, citizen children who live “in households with noncitizens . . . suffer[ ] the disadvantage of . . . reduced overall household resources” (Fix and Zimmermann 1999, p. 2).
This means that citizen children in immigrant families commonly do not receive the needed benefits for which they are eligible as individuals. Benefits for children often are obtained only through a parent’s initiative, and parents who are themselves ineligible may be inhibited in seeking benefits for which their children qualify (Fix and Zimmermann 1999). When parents are deterred from seeking benefits for their children, “inequalities in access within families have been created informally through the actions of parents and public program staff . . . resulting in a hierarchy of citizen children’s access to social benefits, which is ordered by their parent’s citizenship and immigration status” (Leiter, McDonald, and Jacobson 2006, p. 18). In such instances, children’s formal rights to social benefits are trumped by parents and program personnel who act upon misguided beliefs that the parents’ immigration status makes children ineligible. While “citizen children of immigrant parents are formally ‘insiders’ and therefore are fully eligible for social benefits, their parents’ non-citizen, ‘outsider’ status may eclipse their children’s citizenship, resulting in citizen children informally taking on their parent’s citizenship status” (ibid.). Citizen children in mixed-status families thus often take on the status of undocumented children, with all the economic disadvantages that entails.
The looming possibility of deportation and the inability to regularize the presence of large numbers of persons in mixed-status families not only impact the economic realities of families, they also create tensions as immigrant families interact with other societal institutions and legal systems. For example, when a parent is deported or when parents in immigrant families divorce, family courts routinely are called upon to make custody determinations that are challenged by the context of immigration laws and enforcement. As detailed above, immigration status is a potent force that shapes the life experiences of many immigrants and immigrant families. As such, the immigration status of parents and children forms an understandably tempting, though questionable, area of inquiry for family judges struggling to make difficult determinations about the interests of children on the basis of family law’s vague and indeterminate criteria.
The handful of appellate courts that have directly discussed whether immigration status per se should affect child custody have rejected the notion outright. One court, for example, ruled that without regard to their immigration status, parents stand “on equal footing . . . when asserting their right to custody of their children” (Rico v. Rodriguez 2005). In rejecting the argument that a father “should be denied custody solely because of his immigration status,” a court in Washington observed that the “due process and equal protection provisions prevent denying an illegal immigrant custody based on that ground” (In re Parentage of Florentino 2002).17 The commonly advanced notion that parents without authorized immigration status have diminished rights in the parent-child relationship is without basis.
This constitutional, and commonsense, conclusion does not make the operation of family law easy in the face of immigration law realities. For example, if immigration law blocks the preferred family law outcome of a child staying with a parent in the United States, analysis of alternatives can create new challenges to the expertise and resources of family courts. Social workers and courts cannot assume that U.S. citizen children of parents facing deportation must remain in the United States, because there is no inherent reason that parents forced by immigration law to leave the country can no longer care for their children.18
Still, in such instances a parent’s “location abroad presents many challenges for any child welfare agency assigned by the state to oversee the welfare of the child” (Boye 2004, p. 1517). There are “many unavoidable obstacles, including information disadvantages, financial limitations, cultural differences, communication barriers, and the involvement of multiple judicial systems” (ibid.). When immigration law prohibits a parent from returning to the United States, these cross-border difficulties are compounded. Yet these barriers are not insurmountable, and certainly the imperative to preserve the parent-child relationship requires efforts to overcome them. In this context, the impact of immigration law is felt throughout family court and child welfare systems that must deal with the aftermath of immigration law’s disruption of living arrangements that often were serving the interests of families and children quite well.
Even when no family member faces imminent deportation, family courts struggle to accommodate the collateral consequences of a party’s immigration status in their daily decisions. For example, family courts struggle to implement child support obligations in matters involving persons not authorized to work in the United States.19 Workers paid in cash, as their immigration status generally prevented them from having documentary proof of their incomes to establish the appropriate levels of child support (Gomez v. Fernandez 2004). And income records may be wildly inaccurate due to immigration-related fraud. In such instances, when support obligations are not met, garnishing wages proves difficult at best.
The limitations of immigration law that put families outside the law result in untold complications in applying the law and legal regimes to which they remain subject. These have deep and lasting repercussions not only for immigrants and immigrant families, but also for institutions and legal systems that are built to serve and preserve families. With immigration law working at odds with the basic goals and values of these systems, resources are wasted and important goals for the well-being of families and children are undermined. Given the frequency of these forced interactions, vigilance is required to ensure that the values of systems designed to preserve families are not similarly warped and undermined.
The privileges that immigration law bestows on those “happy” families whose characteristics align with its narrow requirements cannot entirely mask the failure of immigration law to value families that differ from the ideal. Devaluing basic notions of family independence and decision-making, immigration law fails these unhappy families that do not conform. The result is family separation, hardship, and suffering for immigrant families and barriers to full participation in society. In the wake of immigration enforcement, it is not the immigration system but families and other legal systems that are left to sort through the complications and problems left behind.
The contradictions and inhumanity inherent in the current immigration law and its enforcement are enabled by a legal framework that strips compelling facts and narratives of relevance and sweeps them away. The force of family narratives that accompany immigration law must be restored, in immigration law and in society. Sweeping away the pain of families impacted by immigration law hides reality and warps efforts at meaningful reform.
1 In contrast, international human rights instruments expressly address the central importance of family. The Universal Declaration of Human Rights (UDHR) art. 16(3) declares that the “family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III), (Dec. 10, 1948) See also 1966 International Covenant on Civil and Political Rights (ICCPR) art. 23(1), “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” International Covenant on Civil and Political Rights, Oct. 5, 1977, 1966 U.S.T. 521, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights (ICESCR) art. 10(1), Dec.16, 1966, 993 U.N.T.S. 3 (“The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society”); 1969 American Convention on Human Rights, art.17(1), Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 (“the family is the natural and fundamental group unit of society and is entitled to protection by society and the state”); African [Banjul] Charter on Human and Peoples’ Rights art. 18(1), June 27, 1981, O.A.U. Doc. CAB/LEG/67/3 rev. 5, 1520 U.N.T.S. 217 (“The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral”); European Convention for the Protection of Human Rights and Fundamental Freedoms art. 8, Nov. 4, 1950, 213 U.N.T.S. 222 (“Everyone has the right to respect for his private and family life”).
2 See also Meyer v. Nebraska (1923); Pierce v. Soc’y of Sisters (1925), affirming that parents have the right, and duty, “to direct the upbringing . . . of children under their control”; Flores v. Reno (1993), noting that by “our society and this Court’s jurisprudence [parents] have always presumed to be the preferred and primary custodians of their minor children.”
3 Variations of cancellation of removal also apply to persons already granted legal permanent resident status (Immigration and Nationality Act § 240A, 8 U.S.C. § 1229b(a)(1) (2006)), and children and spouses who have been battered or subjected to extreme cruelty by U.S. citizens or legal permanent residents (Immigration and Nationality Act § 240A, 8 U.S.C. § 1229b(b)(2) (2006)).
4 “Congress has never accepted the theory that minor American-born children of deportable aliens must, or even should, remain in the United States, and that living with their deportable parents in their home country would result in ‘extreme hardship’ to them.” In re Piggot (1974).
5 Regarding recent developments for same-sex couples, see Benjamin P. Edwards (2013).
6 See Julia Preston (2007) for a discussion of issuance of government guidelines following a raid in which a nursing mother was separated from her infant daughter.
7 This aspect of damage to the parent-child relationship that flows from forced separation is not new. For example, “messages of parental vulnerability and subordination were repeatedly burned into the consciousness of slave parents and children, undermining their sense of worth, diminishing the sense of family security and authority, eroding the parents’ function as a model of adult agency and independence” (Davis 1997:98).
8 Processing times and bureaucratic delays can mean that “immediately” seems an overstatement, but delays here are in the application of the law, not in its substance.
9 The March 2011 Visa Bulletin shows a backlog of more than four years for a petition by a lawful permanent resident for a minor child (USDS 2011).
10 See Motomura (1995, p. 43), noting that the Immigration and Nationality Act “enumerates recognized family relationships, and the courts have consistently rejected attempts to use surrogate family relationships to meet statutory requirements.”
11 INS v. Hector (1986, pp. 90–91), reversing a decision that nieces aged ten and eleven in the care of their aunt for three years were the “functional equivalent” of children under the Immigration and Nationality Act; see also Moreno-Morante v. Gonzales (2007), rejecting the argument that grandchildren were “de facto” children; Dorado v. Gonzalez (2006) holding that the unadopted son of the applicant’s longtime girlfriend was not a “child” under the Act.
12 For an insightful discussion of the implications of this formalistic approach, see Zug (2009:43).
13 Describing an abusive father’s failure to include his seventeen-year-old son in an immigration petition for other family members, which led to the determination to deport him alone back to Poland while leaving his mother and siblings in the United States.
14 “To the extent that the framework for family-sponsored and derivative immigration tends to achieve family integrity, it does so by ceding control over a child’s status to parents and by denying opportunities for children to achieve legal status as children without their parents” (Thronson 2006, p. 1182).
15 For example, 84 percent of unauthorized migrants from Mexico and 73 percent of unauthorized migrants from Central America entered without inspection (Pew Research Center 2006, p. 4). In contrast, 91% of all other unauthorized migrants are visa overstays who escape penalties imposed for entering without inspection (Pew Research Center 2006).
16 See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 412, 110 Stat. 2105, 2269–70 (1996) (granting authority to states to determine eligibility of certain noncitizens for some public benefits such as Temporary Assistance for Needy Families and Food Stamps). See also Leiter, McDonald, and Jacobson (2006) noting that 1996 legal reforms “‘target’ social benefits to a more restricted scope of beneficiaries, and citizenship status is now one of the screens that is now used to determine eligibility.”
17 See also Plyler v. Doe (1982), recognizing that “even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”
18 Courts do not always understand this. See In re D.R. (2004), stating that a mother’s “return to Honduras renders her effectively unable to serve as a responsible parent.”
19 See Gomez v. Fernandez (2004), rejecting a father’s argument that lack of employment authorization served as a defense to his child support obligation.
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Dorado v. Gonzalez, 202 F. App’x 898, 899 (6th Cir. 2006).
Fiallo v. Bell, 430 U.S. 787, 798 (1977).
Flores v. Reno, 507 U.S. 292, 304 (1993).
Fornalik v. Perryman, 223 F.3d 523, 527-28 (7th Cir. 2000).
Gomez v. Fernandez, No. R-120399 (Nev. Eighth Jud. Dist. Ct. Fam. Div. hearing Mar. 22, 2004).
Hernandez-Cordero v. INS, 819 F.2d 558, 563 (5th Cir. 1987).
In re D.R., 204 Conn. Super. LEXIS 325, at *34, 2004 WL 423993 (Conn. Super. Feb. 9, 2004).
In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001).
In re Parentage of Florentino, 113 Wash.App. 1002, 2002 WL 1825422 at *5, n.11 (Wash. App. Div. 2 Aug. 9, 2002).
In re Piggot, 15 I. & N. Dec. 129, 131 (BIA 1974).
INS v. Hector, 479 U.S. 85 (1986).
Jimenez v. INS, 116 F.3d 1485 (9th Cir. 1997).
Meyer v. Nebraska, 262 U.S. 390 (1923).
Moore v. City of East Cleveland, 431 U.S. 494, 503–506 (1977).
Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 (9th Cir. 2007).
Pierce v. Soc’y of Sisters, 268 U.S. 534–35 (1925).
Plyler v. Doe, 457 U.S. 202, 210 (1982).
Rico v. Rodriguez, 120 P.3d 812, 818 (Nev. 2005).
Sullivan v. INS, 772 F.2d 609, 611 (9th Cir. 1985).
Troxel v. Granville, 530 U.S. 57, 65 (2000).
8 U.S.C. § 1101(b)(1) (2006 and Supp. 2011)
8 U.S.C. § 1151(b)(2)(A)(i); (c) (Supp. 2011)
8 U.S.C. § 1151(c) (2006)
8 U.S.C. § 1153(a) (2006)
8 U.S.C. § 1153(d) (2006)
8 U.S.C. § 1182 (2006 and Supp. 2011)
8 U.S.C. § 1182(a)(3)(B) (2006)
8 U.S.C. § 1182(a)(9)(B)(v) (2006)
8 U.S.C. § 1227(a)(4)(B) (2006)
8 U.S.C. § 1229b (2006 and Supp. 2011)